Kutty Nanu vs State of Kerala

R. Bhaskaran, J.—These three second appeals arise out of the same suit and first appeal. There were 41 plaintiffs in O.S. No. 487 of 1978 on the file of the Munsiff, Thiruvalla. That suit was for a declaration that they are members belonging to Hindu Mala Araya Community. It is stated that they are entitled for the benefits available to the members of the Scheduled Tribe and the family members of the plaintiff''s were given such benefits by the State. Since the Tahsildar refused caste certificate to the children of the plaintiffs'' stating that plaintiffs are not Hindu Mala Araya, the suit is filed.

The trial court decreed the suit. The decision of the trial court was based on Ext. A1 patta in respect of 17 cents of property assigned on registry in favour of the Mala Araya Karayogam, Ext. A2 true copy of the schedule showing the distribution of population numerically important Scheduled Tribes of Kerala and certain certificates issued by the Tahsildar, Thiruvalla, to some of the relatives of the petitioners. The contention of the defendants is that the plaintiffs belong to Araya Community which is not included in the list of Scheduled Castes/Scheduled Tribes. Araya Community is OBC (Other Backward Community). Certain documents were relied on by the defendants to show that the plaintiffs'' do not belong to Mala Araya Community. It is unnecessary to go into the details of these contentions in these second appeals.

The appellate court allowed the appeal filed by the defendants and found that the suit is not maintainable. The appellate court relied on the decision of the Supreme Court holding that there is an implied bar for the maintainability of such suits.

The counsel appearing for the appellants vehemently argued that u/s 9 of the CPC all suits of civil nature are maintainable unless their cognizance is impliedly barred and there is nothing to show that the cognizance of the Civil Court is impliedly barred in this case.

In this case, I find that 41 persons have joined together and filed a common suit for a declaration that they belong to Mala Araya Community by stating that the Karayogam to which they were members have been assigned 17 cents by the Government recognising it as a Mala Araya Karayogam. They also produced certain certificates and entries in the SSLC book relating to some of their relatives showing that they have been given the benefits available to members of Scheduled Tribe. According to me, it is not possible to decree such a suit on such vague allegations apart from the fact that the Supreme Court has held that such suits are impliedly barred u/s 9 of the Code of Civil Procedure. In State of Tamil Nadu and others Vs. A. Gurusamy, , the plaintiff was described as a member of "Thotti" community in the school records. Thotti community is a scheduled caste under the Presedential Notification. Subsequently, the plaintiff obtained certificate from the Revenue Divisional Officer indicating him to be a Kattunaikkan which community is recognised as a Scheduled Tribe in the State of Tamil Nadu under the President Notification. When he applied for a permanent certificate, enquiry was conducted and it was found that the plaintiff was not a member of Scheduled Tribe but a member of Scheduled Caste and the earlier certificate was cancelled. That necessitated the suit which was deceed by the trial court and confirmed by the appellate court and the decrees were further confirmed by the High Court in second appeal. The Supreme Court however allowed the appeal filed by the State and dismissed the suit finding that by necessary implication the jurisdiction of the civil court to take cognizance and give a declaration stand prohibited. The authorities competent to issue the certificate were to conduct necessary enquiries and thereafter a decision is taken. In this case, the plaintiffs have no case that their claim to be members of Scheduled Castes/Scheduled Tribes have been separately and individually considered by the competent authority. But they want a declaration from the civil court which will prevent the competent authority to make any enquiry about their status. Such an approach cannot be permitted.

The learned counsel appearing for the respondents brought to my notice the decision of the Supreme Court in Kumari Madhuri Patila and another Vs. Addl. Commissioner, Tribal Development and others, . The Supreme Court has laid down the procedure for issuance of social status certificate. It is clearly stated that no suit or other proceedings before any authority should lie. The counsel for the appellants pointed out that the present suit was filed as early as in 1978 and therefore the decision of the Supreme Court rendered in 1995 cannot be made applicable to the facts of the case. Though the Supreme Court decision may not have retrospective effect, it can be seen from the facts of the present case that what they have sought for is a declaration by a civil court de hors an enquiry by the authorities competent to decide the status of the plaintiffs as to whether they belong to Scheduled Tribe or Other Backward Community.

Learned counsel for the respondents also brought to my notice the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act, 1996 (Act 11 of 1996). The learned counsel pointed out that if any one of the plaintiffs has a case that he/she is a member of the Scheduled Caste/Scheduled Tribe, he/she can apply for a community certificate u/s 4 of the Act and the competent authority shall after following the prescribed procedure and if satisfied that any one of the plaintiffs is a member of such Scheduled Caste/Scheduled Tribe will issue the certificate. I do not find any reason to bypass the statutory provision and to allow the second appeals and restore the decree of the trial court which was passed without relying upon any document directly applicable to any of the plaintiffs. There was also no enquiry by the persons concerned who were competent to issue the certificate even before the commencement of Act 11 of 1996.

According to the learned counsel appearing for the appellants the exclusion of the jurisdiction of the Civil Court is only in respect of declaring a particular community as belonging to Scheduled Castes/Scheduled Tribes against the provisions of Articles 341 and 342 of the Constitution and that bar does not apply to declare the status of individuals belonging to Scheduled Castes/Scheduled Tribes as notified by the President. In view of the direct decision of the Supreme Court in Gurusamy''s case (1997 (3) SCC 542), it is not possible for this Court to accept this contention. No doubt, the learned counsel has brought to my notice the decisions in Shri Ramendra Kishore Biswas Vs. The State of Tripura and Others, and Sankaranarayanan Potti (Dead) By L.R.S. Vs. K. Sreedevi and Others, and some other decisions on similar lines. In R.K. Biswas''s case, the Supreme Court has held that the Service Rules neither expressly nor by implication have taken away the jurisdiction of the civil courts to deal with service matter. In that case the appellant was proceeded against in a departmental enquiry and was found guilty. He was dismissed from service. That was challenged in by filing a civil suit for the reason that proper procedure had not been followed. The Civil Court declared the dismissal as void and illegal and directed reinstatement in service. In appeal, the appellate court also held that the dismissal was illegal but the department was given liberty to continue with the enquiry after during defects found by the trial court. There was a further appeal and cross-objection. It was while the second appeal was considered that the High Court held that the suit was not maintainable. The Supreme Court took note of the fact that after the litigation continued for more than five years, the High Court should have decided the case on merits.

In Sankaranarayanan Potti''s case (supra), the Supreme Court was considering the ouster of jurisdiction of the Civil Court u/s 125 of the Kerala Land Reforms Act. It was found that the Civil Court had jurisdiction to decide the question of tenancy in suits which were pending as on the date on which the Amendment Act 35 of 1969 came into force. That decision has no application to the facts of the present case. In view of the discussion made above, I do not find any ground to allow these second appeals and they are dismissed. However, I make it clear that the dismissal of these appeals will not stand in the way of the appellants making applications u/s 4 of Act 11 of 1996 and obtaining necessary certificates if the competent authority is satisfied that the appellants belong to the member of Scheduled Tribe.